Why You Need a Lawyer When Selling Property of the Deceased

July 15, 2015

Few people really understand the importance of legal representation when selling the house or other form of real estate of a deceased person. Yet, the value of having a lawyer on your side during this process cannot be understated. When selling a house or other real estate from a probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., having competent and experienced attorneys on your side is crucial.

Real Estate Laws for Selling Property of the Deceased

In the state of Wisconsin, there are very specific laws that cover the sale of a house or other property from an estate or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries.. Without a skilled lawyer, such real estate transactions for deceased persons often run afoul of the law – exposing the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. or TrusteeThe person or company named in a trust to manage property and assets of a trust. Usually a trust will name an initial trustee or co-trustees and successor trustees. A trustee has the duty to act in the best interest of the person for whom they are managing the funds and is considered a Fiduciary. Most people that set up Revocable Trusts to avoid probate, name themselves as Trustee and also name successor trustees to take over upon death or upon incapacity. to personal liability and the estate or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. to unnecessary liability.

In this article, our estate planning attorneys will focus on the restrictions placed on a Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. of a probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate under Wisconsin law when selling real estate. However, many of the ideas and reasoning are the same for sales from a TrustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. as well.

What is a Probate Estate?

A Probate Estate is a legal procedure in Wisconsin for a deceased person where a  is appointed to handle the administrationA process during which the deceased persons assets pay debts, claims and funeral expenses and the remaining estate funds are then distributed according to the wishes of the deceased person set forth in the Will or Trust. The Administrator is in charge of the process and must follow what is set forth in the Will or Trust. If there is no Will or Trust, the distributions and payments are made according to the law of the applicable state and is called intestate succession. of the decedent’s property.

Wisconsin law assigns the Personal Representative with certain powers and duties including the right to sell the decedent’s property. The capacity to sell that property comes with certain legal restrictions including that the sale offer no warranties, no condition report and no warranty deed (with only very limited exceptions.)

Failure to follow these restrictions can open up both the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. and the decedent’s probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate to liability.

No Warranties in a Sale by a Probate Estate

Wisconsin Law prohibits a Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. from giving warranties when selling a house or other real estate. This protects both the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. from personal liability and the estate process itself.

Should a warranty be given (despite the prohibitions against it), a problem can arise if an issueA person’s children and/or lineal descendants such a grandchildren and great-grandchildren. It refers to a direct blood line in Wisconsin along with legally adopted persons. In Wisconsin the term “issue by right of representation” is commonly used to indicate that a share of beneficiary, if predeceased, shall be distributed to his or her children or lineal descendants. Although slightly different this is often also referred to as Per Stirpes distribution. surrounding the warranty surfaces after the estate is closed. After the estate of the deceased is closed and any money is distributed, the estate would have no wherewithal to cover the warranty issues – thereby exposing the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. to the liability of that warranty.

This same reasoning applies to sales by a TrusteeThe person or company named in a trust to manage property and assets of a trust. Usually a trust will name an initial trustee or co-trustees and successor trustees. A trustee has the duty to act in the best interest of the person for whom they are managing the funds and is considered a Fiduciary. Most people that set up Revocable Trusts to avoid probate, name themselves as Trustee and also name successor trustees to take over upon death or upon incapacity. of a TrustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries. for a deceased person in Wisconsin. Therefore, it is equally important that no warranties are offered in the real estate sale from a decedent’s estate or trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries..

The No Warranty Law in Wisconsin

The standard Offer to Purchase contract used for real estate sales in Wisconsin contains many representations and warranties that are not allowed when a ProbateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. Estate is the seller. Wisconsin Statute 860.07 states that a “personal representativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. has no power to give warranties in any sale” of “property which are binding on the personal representativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. personally or on the estate of the decedentA person who has died. In the Wisconsin probate and estate planning context, it usually refers to the person who created the Will or Trust after he or she has died..”

The only exception to this rule is where the deceased person entered into a contract before death that contained warranties and now the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. is completing the sale. Even in this exception to the rule, there are limits on the ability to provide warranties and a prohibition against binding the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. personally.

Therefore, the contract needs to eliminate representations and warranties from the Offer to Purchase and the closing process. Not doing so can open up the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. or trusteeThe person or company named in a trust to manage property and assets of a trust. Usually a trust will name an initial trustee or co-trustees and successor trustees. A trustee has the duty to act in the best interest of the person for whom they are managing the funds and is considered a Fiduciary. Most people that set up Revocable Trusts to avoid probate, name themselves as Trustee and also name successor trustees to take over upon death or upon incapacity. to unnecessary personal liability.

No Real Estate Condition Report

Normally a seller of residential real estate in Wisconsin, such as a house, is required to provide a Real Estate Condition Report listing any defects or other significant issues regarding the condition of the property. However, there is an exception to this general rule when the seller is a ProbateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. Estate.

Wisconsin law provides that a Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. is exempt and does not have to provide a Real Estate Condition Report  if the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. has not occupied the property (Wisconsin Statute 709.01).  This statute also applies to Trustees.

Therefore, a Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. should not give a Real Estate Condition Report in a sale from a ProbateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. Estate since the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. is not required to do so if he or she has not lived on the property.

Providing a Real Estate Condition Report is problematic because it could open up the estate and the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. to personal liability for misrepresentation.

Therefore it is important that attorneys properly structure the contract to clearly state that a Real Estate Condition Report is not required and willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. not be provided pursuant to Wisconsin Law.

That said, due to other relevant law, if the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. actually knows of a defect, our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity. attorneys willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. have the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. disclose the known defect in the Offer to Purchase contract.

Personal Representative’s Deed

Normally, in a standard transaction, the seller provides a Warranty Deed that warrants title to the property for the buyer. However, due to the prohibition on warranties in probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estates (and by reasoning on trusts of deceased persons), a Warranty Deed cannot be provided by the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives.. Instead, the attorneys at Wokwicz Law Offices willA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. use a Personal Representative’s Deed that does not provide for any warranties as to the title and simply transfers whatever ownership the probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate possesses.

Protecting Yourself and Your Family from Liability

With Wisconsin law, the sale of a deceased person’s house or other property is anything but standard. As such, it is important that you have an experienced and knowledgeable attorney to ensure that the sale complies with the law and does not open up the probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate or the Personal RepresentativeA term used in Wisconsin to describe the person appointed by a probate court to be in charge of the probate administration process of a deceased person. This is often referred to in other states as an Executor or Administrator. The Personal Representative may be set forth and nominated in a decedent’s Will before death along with successor Personal Representatives. to personal liability.

At Wokwicz Law Offices, LLC, we can properly guide and assist a Wisconsin trustThe arrangement creating the legal ownership of assets by a trustee for the benefit of the Settlor and/or other beneficiaries., or a probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. estate house other other real estate sale with competent and experienced legal representation. Please contact us on 262-658-2181 or info@wokwicz.com to schedule an appointment with our estate planningPlanning in advance of disability, incapacity, or death to make sure that key life issues have been addressed while the person is still of sound mind and able to understand and sign key documents such as Power of Attorneys, Power of Attorneys for Health Care, Wills, and Trusts to form a strategy and provide for the administration and disposition of his or her assets upon death or upon incapacity., probateThe court process proving the validity of a Will and conducting the orderly Inventory, Accounting, and Administration of a decedent’s assets under a Will or under Intestacy laws if there is no Will. The probate process in Wisconsin typically takes between six to twelve months in Wisconsin and can take longer in some cases. Probate can be avoided by proper Estate Planning and through the use of beneficiary designations, Transfer on Death Deeds, Marital Property Agreements and Trusts. and real estate law attorneys.